50 – Book of Division
It is incumbent upon the ruler to appoint a surveyor and pay him from the public treasury so that he may apportion property among the people free of charge.
If he fails to do so, a surveyor is engaged for a wage.
The surveyor must be upright, trustworthy, and knowledgeable about the rules of division.
The judge should neither force the litigants to accept a single surveyor, nor allow the surveyors themselves to enter into joint participation.
According to Abū Ḥanīfah, the cost of the division is borne equally per capita; Abū Yūsuf and Muḥammad maintain that it is borne in proportion to each person’s share.
If the partners are present, a house or estate is in their possession, and they claim to have inherited it from a certain deceased, then—according to Abū Ḥanīfah—the property is not divided until they produce evidence of his death and of the number of heirs.
Abū Yūsuf and Muḥammad say that it may be divided on the basis of their acknowledgment, and the surveyor records in the deed of division that he acted on their statement.
If the joint property is something other than real estate and they claim it is inherited, all three Imams agree that it is divided in reliance on their word.
If, with respect to the real estate, they say that they purchased it, he divides it among them, and if they merely assert ownership without stating how it passed to them, he likewise divides it among them.
When each partner can benefit from his portion, division may be ordered at the request of any one of them.
If one partner benefits while the other is harmed because his share is too small, the property is divided if the one with the larger share requests it; if the one with the smaller share requests, it is not divided.
If both would be harmed by division, it is not divided except with their mutual consent.
Movable goods are divided when they are of a single kind; items of two different kinds are not divided one against the other.
Abū Ḥanīfah holds that slaves and precious stones are not to be divided because their values vary; Abū Yūsuf and Muḥammad allow the division of slaves.
A bathhouse, a well, or a mill is not divided unless the partners agree.
If two heirs appear, produce evidence of the death and of the number of heirs, and the house is in their possession while another heir is absent, the judge divides it at the request of those present and appoints an agent to receive the absentee’s share.
If they are co-purchasers, the property is not divided while one of them is absent.
If the real estate is in the hands of the absent heir, it is not divided, nor is it divided when only one heir is present.
If several houses are jointly owned in a single town, each house is divided